Unrefuted evidence of erroneous property designation is sufficient to survive the “fairly-debatable” standard of review. Island, Inc. v. City of Bradenton Beach, 29 Fla. L. Weekly D1488 (Fla. 2d DCA June 23, 2004).

     Island, Inc. and Beach Development, Inc. (Petitioners) appealed a trial court’s determination upholding the City Commission’s denial of their petition for two small-scale development amendments to the City’s comprehensive plan. Petitioners sought – through the proposed amendments – to change their properties’ land use designations from “preservation” to “medium/high residential/tourist.” The proposed changes would have allowed Petitioners to develop their properties, while the existing “preservation” designation prohibited development. In support of these proposed changes, Petitioners presented unrefuted evidence to the Commission that their properties had been erroneously designated as “preservation”properties.

     On appeal, the Second DCA reversed, finding the City’s action was not “fairly-debatable.” Recognizing that small-scale development amendments are legislative decisions subject to the “fairly-debatable” standard of review, the court described the “fairly-debatable” standard of review, as a “rule of reasonableness” that requires approval of a planning action even where “reasonable persons could differ as to its propriety.” Applying this standard, the court held that the unrefuted evidence presented to the City Commission established that the properties were erroneously designated as “preservation” properties and that Petitioners were entitled to their requested small-scale amendments. Unsupported lay, opinion testimony regarding the intent of the designation was insufficient to overcome unrefuted expert testimony regarding the error in classification.
 

Standing under the Administrative Procedure Act is more narrow than standing under the Local Government Comprehensive Planning and Land Development Regulation Act. Melzer v. Florida Dep’t of Community Affairs, 29 Fla. L. Weekly D1774 (Fla. 4th DCA Aug. 4, 2004).

     Residents of Martin County appealed a Department of Community Affairs’ final order that approved amendments to Martin County’s Comprehensive Growth Management Plan. The Fourth DCA dismissed the appeal because the residents failed to demonstrate that they had standing to appeal the Department’s order.

     In reaching its decision, the court differentiated between the standing required to participate at the administrative hearing level and the standing required to appeal an agency’s final order. The court noted that the Local Government Comprehensive Planning and Land Development Regulation Act gives any “affected person” standing to seek an administrative hearing. Because the Act’s definition of “affected person” includes, inter alia, residents of the local government whose plan is the subject of review, the court held that the Act provided Martin County residents standing to seek the administrative hearing. However, the court held that standing to appeal a final agency order is governed by the APA. In so holding, the court reasoned that because the APA requires an appellant to be “adversely affected by the final agency action,” standing to appeal a final agency order is narrower than standing required to initiate an administrative proceeding. Consequently, the court found that the residents lacked standing under the APA to challenge the Department’s final order because they failed to demonstrate that they would be adversely affected by the amendments. The court relied on precedent holding that simply residing in an area subject to a final agency order, without more, is insufficient to show that a party will be adversely affected by the order.

     City’s moratorium on the issuance of building permits for projects that exceeded height or density restrictions did not violate injunction precluding the city from enforcing similar height and density restrictions pursuant to a charter amendment. City of Cocoa Beach v. Vacation Beach, Inc., 876 So. 2d 719 (Fla. 5th DCA July 2, 2004).

     The City of Cocoa Beach was enjoined from enforcing a charter amendment adopted by referendum that specified height and density restrictions for development within the City. The City then enacted, and subsequently extended, a moratorium on the issuance of building permits for projects that exceeded the height and density restrictions that were similar to those set forth in the charter amendment that the City was enjoined from enforcing. Vacation Beach moved to hold the City in contempt for effectively violating the injunction. The trial court held the City in contempt for the moratorium and its extension and ruled that the City’s actions constituted a “thinly veiled attempt” to enforce the height and density restrictions contained within the enjoined charter amendments. The City appealed.

     On appeal, the Fifth DCA held that the injunction only limited the City’s ability to enforce the height and density restrictions of the charter amendments and did not restrict the City’s ability to enact similar limitations through other methods within the City’s power. In so holding, the court noted that Vacation Beach did not challenge the City’s power to enact the moratorium but, instead, Vacation Beach claimed that the City’s actions of enacting and later extending the moratorium violated the injunction. The court held that the City’s moratorium did not violate the injunction because the City’s power to enact a moratorium was not subject to the injunction even though the moratorium imposed the same restrictions as the enjoined charter amendment. Thus, the court vacated the contempt order.
 

Certiorari challenge regarding constitutionality of city ordinance is mooted by passage of new city ordinance; certiorari proceeding is not the proper forum for constitutional challenges to a zoning ordinance; certiorari proceeding is the proper forum for landowner’s objections to city’s approval of a conditional use height variance where superseding ordinance did not address the conditional use height variance. Nannie Lee’s Strawberry Mansion v. City of Melbourne, 877 So. 2d 793 (Fla. 5th DCA July 2, 2004).

     Nannie Lee’s Strawberry Mansion and Spanish Trace, Inc. (Petitioners) sought certiorari review of the circuit court’s dismissal of their petition for writ of certiorari. The petition sought review of a City of Melbourne ordinance that approved a site plan and granted a conditional use for a height variance to Hynes Properties, LLC (Hynes). Before the case was decided a new ordinance was adopted that side stepped the objections to the challenged ordinance. The circuit court, sitting in its appellant capacity, ruled that the new ordinance superseded the challenged ordinance and, therefore, mooted the need for an examination of the superseded ordinance. Further, the circuit court ruled that a declaratory judgment action instead of certiorari review was the proper vehicle to challenge the facial validity of zoning codes. Petitioners appealed.

     On appeal, the Fifth DCA held that the circuit court correctly ruled the challenge to the ordinance moot because the ordinance had been superseded. The court noted that a case on appeal is mooted when a change in circumstances occurs that renders impossible the provision of effective relief. The court further upheld the circuit court’s ruling that an original action for declaratory judgment, as opposed to a certiorari proceeding, is the proper forum to raise constitutional challenges to a zoning ordinance. However, the court found that the circuit court misapplied the law by dismissing the entire certiorari petition as moot. In so finding, the court reasoned that although the challenged ordinance had been superseded, non-constitutional issues raised by petitioners concerning the propriety of the conditional use for a height variance were still pending because the new ordinance did not address the conditional use for a height variance. Therefore, the court granted the petition in part, quashing the circuit court order.
 

District Court of Appeal will not consider whether competent, substantial evidence supported the circuit court’s appellate decision where the circuit court determined that such evidence exists; the “law of the case doctrine” bars consideration of only those legal issues considered and decided in a former appeal. Dorian v. Davis, 874 So. 2d 661 (Fla. 5th DCA June 16, 2004).

     Orange County Board of Commissioners denied Davis’ Final Development Plan (Plan) on the basis that, if implemented, the Plan would create a public safety emergency. The applicant sought certiorari and mandamus review from the circuit court, which found for Davis and directed the Board of Commissioners to approve the Plan. Orange County petitioned for certiorari review and the Fifth DCA quashed the circuit court’s order. Subsequently, the County held a second hearing where new evidence was considered and relied upon in denying Davis’ Plan. The circuit court, acting in its appellate capacity, reversed the County’s decision despite finding two of three reasons for denial were supported by competent substantial evidence. The County petitioned for “second-tier” certiorari review.

     The Fifth DCA granted certiorari and quashed the circuit court’s decision. The court held that it is immaterial that one of the three reasons given by the County for disapproving Davis’ Plan may be invalid because the County has provided two other reasons that are supported by competent, substantial evidence. The court went on to state that once there is a determination by the trial court that competent, substantial evidence exists, “that is the end of the matter.” Additionally, the court rejected Davis’ argument that the “law of the case” doctrine should apply because, in reaching its second decision to deny Davis’ Plan, the County considered new evidence and denied the Plan on grounds not implicated its first decision.


Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.B.A. and J.D. from the University of Georgia. D. Kent Safriet is an Associate with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.S. from Clemson University and his J.D. from the University of South Carolina. Mr. Hunter and Mr. Safriet practice primarily in the areas of environmental and land use litigation and solid and and hazardous waste regulation.